by Neil Gorsuch
This distinction proves decisive. Some years before Quill, in National Bellas Hess, Inc. v. Department of Revenue of Illinois, the Supreme Court held that states could not impose use tax collection duties on out-of-state firms. In Quill, the Court openly reconsidered that decision and ultimately chose to retain its rule—but it did so only to protect the reliance interests that had grown up around it. Indeed, the Court expressly acknowledged that Bellas Hess very well might have been decided differently under “contemporary Commerce Clause jurisprudence.” The Court also expressly acknowledged that states can constitutionally impose tax and regulatory burdens on out-of-state firms that are more or less comparable to sales and use tax collection duties. And the Court expressly acknowledged that this dichotomy—between (impermissible) sales and use tax collection obligations and (permissible) comparable tax and regulatory burdens—is pretty “artificial” and “formalistic.” Given all this, respect for Quill’s reasoning surely means we must respect the Bellas Hess rule it retained. But just as surely it means we are under no obligation to extend that rule to comparable tax and regulatory obligations. In fact, this much is itself a matter of precedent for this court and many others have already held Quill does nothing to forbid states from imposing regulatory and tax duties of comparable severity to sales and use tax collection duties.
It may be rare for Supreme Court precedents to suffer as highly a “distinguished” fate as Bellas Hess—but it isn’t unprecedented. Take baseball. Years ago and speaking through Justice Holmes, the Supreme Court in Federal Baseball held baseball effectively immune from the federal antitrust laws and did so reasoning that the “exhibition[] of base ball” by professional teams crossing state lines didn’t involve “commerce among the States.” Since then the Supreme Court has recognized that other organizations offering “exhibitions” in various states do engage in interstate commerce and are subject to antitrust scrutiny. But though it has long since rejected the reasoning of Federal Baseball, the Supreme Court has still chosen to retain the holding itself—continuing to rule baseball effectively immune from the antitrust laws, if now only out of respect for the reliance interests the Federal Baseball decision engendered in that particular industry. And, of course, Congress has since codified baseball’s special exemption. So it is that the baseball rule now applies only to baseball itself, having lost every away game it has played.
Accepting at this point that Quill doesn’t require us to declare Colorado’s law unconstitutional, the question remains whether some other principle in dormant commerce clause doctrine might. For their part the plaintiffs identify (only) one other potential candidate, suggesting that Colorado’s law runs afoul of the principle that states may not discriminate against out-of-state firms, a principle often associated with West Lynn Creamery, Inc. v. Healy. And to the extent that there’s anything that’s uncontroversial about dormant commerce clause jurisprudence it may be this anti-discrimination principle, for even critics of dormant commerce clause doctrine often endorse it even as they suggest it might find a more textually comfortable home in other constitutional provisions.
But any claim of discrimination in this case is easily rejected. The plaintiffs haven’t come close to showing that the notice and reporting burdens Colorado places on out-of-state mail order and internet retailers compare unfavorably to the administrative burdens the state imposes on in-state brick-and-mortar retailers who must collect sales and use taxes. If anything, by asking us to strike down Colorado’s law, out-of-state mail order and internet retailers don’t seek comparable treatment to their in-state brick-and-mortar rivals, they seek more favorable treatment, a competitive advantage, a sort of judicially sponsored arbitrage opportunity or “tax shelter.”
Of course, the mail order and internet retailer plaintiffs might respond that, whatever its propriety, they are entitled to a competitive advantage over their brick-and-mortar competitors thanks to Bellas Hess and Quill. And about that much (again) I cannot disagree. It is a fact—if an analytical oddity—that the Bellas Hess branch of dormant commerce clause jurisprudence guarantees a competitive benefit to certain firms simply because of the organizational form they choose to assume while the mainstream of dormant commerce clause jurisprudence associated with West Lynn Creamery is all about preventing discrimination between firms. And the plaintiffs might well complain that the competitive advantage they enjoy will be diluted by our decision in this case. Indeed, if my colleagues and I are correct that states may impose notice and reporting burdens on mail order and internet retailers comparable to the sales and use tax collection obligations they impose on brick-and-mortar firms, many (all?) states can be expected to follow Colorado’s lead and enact statutes like the one now before us.
But this result too seems to me, as it does to my colleagues, entirely consistent with the demands of precedent. After all, by reinforcing an admittedly “formalistic” and “artificial” distinction between sales and use tax collection obligations and other comparable regulatory and tax duties, Quill invited states to impose comparable duties. In this way, Quill might be said to have attached a sort of expiration date for mail order and internet vendors’ reliance interests on Bellas Hess’s rule by perpetuating its rule for the time being while also encouraging states over time to find ways of achieving comparable results through different means. In this way too Quill is perhaps unusual but hardly unprecedented, for while some precedential islands manage to survive indefinitely even when surrounded by a sea of contrary law (e.g., Federal Baseball), a good many others disappear when reliance interests never form around them or erode over time (e.g., Montejo v. Louisiana). And Quill’s very reasoning—its ratio decidendi—seems deliberately designed to ensure that Bellas Hess’s precedential island would never expand but would, if anything, wash away with the tides of time.
American Atheists v. Davenport
To honor its fallen troopers, the Utah Highway Patrol erected roadside crosses near the spots where they were mortally injured. The crosses bore each trooper’s name and badge number. Just below the name appeared the Utah Highway Patrol’s beehive symbol, along with biographical details about the trooper. Did this violate the Constitution’s Establishment Clause, which prohibits laws “respecting an establishment of religion”?
This Tenth Circuit case presented us with a difficult job when it came to trying to follow precedent. In Lemon v. Kurtzman, the Supreme Court offered a three-part test for determining when a law violates the Establishment Clause. But a decade later, Justice Sandra Day O’Connor modified that test and sought to require courts to ask whether an objective, reasonable observer would view the government’s action as “endors[ing]” religion. Still later Supreme Court decisions called into question both Lemon and Justice O’Connor’s modification of it and suggested that in some disputes neither should control. In this case, my colleagues and I sought to make sense of these various precedents as best we could. For my part, I suggested in this dissent that we should review our own lower court precedents in light of the most recent intervening Supreme Court developments. And I submitted that if we were still bound to apply Justice O’Connor’s reasonable observer modification of the Lemon test, our reasonable observer should at least be reasonable. (Eventually, during my second full term, the Supreme Court grappled with some of the issues discussed here, in The American Legion v. The American Humanist Association [2019].)
Our court has now repeatedly misapplied the “reasonable observer” test, and it is apparently destined to continue doing so until we are told to stop. Justice O’Connor instructed that the reasonable observer should not be seen as “any ordinary individual, who might occasionally do unreasonable things, but…rather [as] a personification of a community ideal of reasonable behavior.” Yet, our observer continues to be biased, replete with foibles, and prone to mistake.
In this case, according to the panel opinion, our observer starts with the biased presumption that Utah’s roadside crosses are uncon
stitutional. He does so despite the fact that a plurality of the Supreme Court only this year held that “[a] cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.” Our observer takes no heed of this direction. And when he looks to see whether he might overcome his initial bias, the task proves impossible because he disregards the very secularizing details—such as the fallen trooper’s name inscribed on the crossbar—that might allow him to change his mind. He misses these integral components of the display, we’re told by the panel, because “a motorist driving by one of the memorial crosses at 55-plus miles per hour may not notice, and certainly would not focus on, the biographical information.” So it is that we must now apparently account for the speed at which our observer likely travels and how much attention he tends to pay to what he sees. We can’t be sure he will even bother to stop and look at a monument before having us declare the state policy permitting it unconstitutional.
But that’s not the end of things. It seems we must also take account of our observer’s selective and feeble eyesight. Selective because our observer has no problem seeing the Utah Highway Patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia. And feeble because our observer can’t see the trooper’s name even though it is painted in approximately 8-inch lettering across a 6-foot cross-bar—the same size text used for posting the words “SPEED LIMIT” alongside major interstate highways. What’s more, many of Utah’s memorials aren’t even on highways: four of the thirteen are adjacent to sidestreets where “55-plus” speeds aren’t common—including two in front of a Utah Highway Patrol field office. All the same, our observer plows by, some combination of too blind and too fast to read signs adequate for interstate highway traffic. Biased, selective, vision impaired, and a bit of a hot-rodder our observer may be, but the reasonable observer of Justice O’Connor’s description he is not.
Still, if this case could be dismissed as a “one off” misapplication of the reasonable observer test, that might make it less worthy of review. But it can’t be so easily shrugged off. Two years ago we applied a similar misconstruction of the reasonable observer test in Green v. Haskell to become the only circuit court since the Supreme Court’s decision in Van Orden v. Perry to order the removal of a Ten Commandments display that was admittedly erected without a religious purpose and in the context only of a larger secular historical presentation. There, like here, we did so only by employing an observer full of foibles and misinformation. Now we become the only circuit since Van Orden to order the removal of memorial highway crosses to fallen public servants, using this same strikingly unreasonable observer who bears none of the traits Justice O’Connor described. Thus, the pattern is clear: we will strike down laws other courts would uphold, and do so whenever a reasonably biased, impaired, and distracted viewer might confuse them for an endorsement of religion.
And this raises an even larger question. The court’s holding does and must rest on the view that anything a putatively “reasonable observer” could think “endorses” religion is constitutionally problematic. Indeed, the result in this case could hardly be achieved under any different test. It is undisputed that the state actors here did not act with any religious purpose; there is no suggestion in this case that Utah’s monuments establish a religion or coerce anyone to participate in any religious exercise; and the court does not even render a judgment that it thinks Utah’s memorials actually endorse religion. Most Utahans, the record shows, don’t even revere the cross. Thus it is that the court strikes down Utah’s policy only because it is able to imagine a hypothetical “reasonable observer” who could think Utah means to endorse religion—even when it doesn’t.
But whether even the true reasonable observer/endorsement test remains appropriate for assessing Establishment Clause challenges is far from clear. A majority of the Supreme Court in Van Orden declined to employ the reasonable observer/endorsement test in an Establishment Clause challenge to a public display including the Ten Commandments. Following the Supreme Court’s cue, at least three of our sister circuits seem to have rejected the test, at least when it comes to passive public displays like Utah’s. And this year a plurality of the Supreme Court questioned whether even the true “reasonable observer” framework is always appropriate for analyzing Establishment Clause questions.
The court today, however, declines to consider any of these developments, much as it declined to do so in Green. So it is that our opinions in this field continue to apply (or misapply) a reasonable observer/endorsement test that has come under much recent scrutiny—and, worse, our opinions do so without stopping to acknowledge, let alone grapple with, the questions others have raised about the test. It is a rare thing for this court to perpetuate a circuit split without giving due consideration to, or even acknowledging, the competing views of other courts or recent direction from the High Court. But that’s the path we have taken.
Neither is this any humdrum disagreement where uniformity of federal law may not be a pressing concern. Where other courts permit state laws and actions to stand, we strike them down. And the test we use to do so rests on an uncertain premise—that this court possesses the constitutional authority to invalidate not only duly enacted laws and policies that actually “respect[] the establishment of religion,” but also laws and policies a reasonable hypothetical observer could think do so. And, in this circuit’s case, to go even a step further still, claiming the authority to strike down laws and policies a conjured observer could mistakenly think respect an establishment of religion. That is a remarkable use of the “awesome power” of judicial review, and it would have been well worth our while at least to pause to consider its propriety before rolling on.
5.
TOWARD JUSTICE FOR ALL
The rule of law in this country is something every American can rightly take great pride in. As my friend Judge John Kane likes to say, the greatest proof of any society’s commitment to the rule of law may be whether the government can and does lose in its own courts and then respects those judgments. That doesn’t happen everywhere, but it happens in the United States day in and day out.
Still, complacency isn’t part of the American spirit. In the last few chapters, I’ve raised some questions and offered some arguments about things we might improve in our system of justice. But there’s an even larger question still lurking here: What good is any system of justice, even an otherwise perfect one, if it is too often practically inaccessible? While the promise of “Equal Justice Under Law” is chiseled into marble above the entrance to the Supreme Court, the hard truth is that that promise remains unrealized in the lives of too many today. Often enough, justice proves out of reach because of the prohibitive expense associated with our justice system and the intractable delays it sometimes invites.
The law’s shortcomings on these scores are nothing new. As Professor Arthur Miller has observed, “In ancient China, a peasant who resorted to the courts was considered ruined, no matter what the eventual outcome of the suit. Hamlet rued ‘the law’s delay.’ Goethe quit the legal profession in disgust over cases that had been languishing in the German courts for three hundred years.” As a product of the American West, though, one story that speaks to me about this enduring challenge is the Johnson County War. It’s a story that has achieved almost mythic status as a symbol of the early days on the western frontier. There are many versions of the story, but one I particularly enjoyed and benefited from is Christopher Knowlton’s Cattle Kingdom: The Hidden History of the Cowboy West. The Johnson County War saga is often told as a story about land, growth, and class tensions. But to me it’s also a story about why the rule of law depends on access to justice.
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JOHNSON COUNTY IS BEAUTIF
UL country. It lies next to the Bighorn National Forest in Wyoming. The county seat, Buffalo, sits a little west of Gillette and a couple hundred miles north of Saratoga, where my grandmother’s family settled. In the second half of the nineteenth century, cattle barons roamed its open range with huge herds destined for nearby railroad depots and the slaughterhouses back East, where demand for beef had skyrocketed as the country grew prosperous after the Civil War. The cattle barons didn’t own the range, but they often acted like they did. Many were rich eastern heirs or sons of British aristocrats more in love with the myth of the cowboy than the reality of the cow.
Trouble erupted when homesteaders arrived from the East and began parceling up the open range. Enticed by the federal government’s offer of cheap and plentiful land, thousands began pouring into Wyoming, settling the land and tilling the soil. Thanks to the advent of barbed wire, these “sodbusters” fenced in their lands and fenced out the cattle barons’ ranging herds. The land belonged to them. Or so the government told many of them and so they thought.
The cattle barons had different ideas. Squeezed by the new settlements, they decided to strike. After accusing (probably falsely) a couple of settlers of stealing their cattle, they began drawing up a “dead list” of those who had offended them. They used the newspapers to spread the rumor that Johnson County suffered from a rustler problem. They hired vigilante gunmen from Texas. And soon enough they and their hired guns set out for Buffalo to attack their enemies.
